What Employers Should Know About The EEOC’s Final Rule On The Pregnant Workers Fairness Act

On April 15, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final rule interpreting and providing guidance on the Pregnant Workers Fairness Act (PWFA).  The PWFA, which became effective in June 2023, requires covered employers to provide reasonable accommodations to qualified employees or applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.  The only exception to this requirement is if the accommodation would cause the employer an undue hardship.  The final rule applies only to accommodations, and does not replace other, more protective, federal, state, or local laws.  The final rule is effective as of June 18, 2024.

Covered Employers

 Any employer covered by Title VII of the Civil Rights Act of 1964 (Title VII) is a covered employer under the PWFA.  Generally, employers of 15 or more employees are covered under Title VII.  In addition to employers, the PWFA also covers unions and employment agencies.  Protections under the PWFA extend to applicants, current employees, and former employees.

Conditions that Can Give Rise to an Accommodation

The final rule is expansive in scope.  It clarifies that “pregnancy, childbirth, or related medical conditions” may include:

• current pregnancy, past pregnancy, potential pregnancy,
• lactation,
• use of contraception,
• menstruation,
• infertility/fertility treatments,
• endometriosis,
• preeclampsia,
• gestational diabetes,
• miscarriage or stillbirth,
• choosing or not choosing to have an abortion.

Related medical conditions can also include those pre-existing conditions which are made worse by pregnancy or childbirth, as well as new physical or mental conditions manifesting during pregnancy.

Essential Job Functions

The PWFA requires, in certain circumstances, that employers provide employees with job accommodations to allow them to perform their essential job functions, absent that accommodation creating an undue hardship. The PWFA, however, goes further than requiring accommodations. The PWFA also excuses employees from performing the very essence of their job functions, as long as the inability to perform the essential job function is temporary. Temporary means, under the final regulations, not permanent, and that the employee can perform the job function in the near future. Depending upon the employee’s specific circumstances, an employee may argue that they will be able to perform the essential function at issue after nine months (after childbirth), and therefore they have satisfied the temporary requirement. The final rule clarifies, however, that employers must make this determination on a case-by-case basis.

If the inability to perform an essential job function is merely temporary and will not cause an undue hardship, then the employer may accommodate the employee by temporarily eliminating the job function at issue, or by assigning the employee other tasks in lieu of the essential job function at issue, or by temporarily reassigning the employee. Throughout this process, as with other reasonable accommodation requests, an employer may need to consider more than one alternative to identify a reasonable accommodation that does not pose an undue hardship.

Undue Hardship

The PWFA borrows the definition of undue hardship from the Americans With Disabilities Act (ADA). Undue hardship means “significant difficulty or expense for the operation of the employer.” Factors for employers to consider when conducting the undue hardship analysis under the PWFA also include:

• the length of time that the employee is unable to perform essential job functions;
• if there is work for the employee to perform;
• the nature and frequency of the essential function;
• whether other employees in similar positions have been temporarily relieved of performing the essential job function;
• are employees, including temporary employees, available, or could be hired, to perform the essential functions; and
• whether the essential job function can be temporarily halted.

Requesting a Reasonable Accommodations

The employee must notify the employer of the physical/mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The employee must also notify the employer that they need an accommodation or a change at work because of this limitation.

The final rule explains that possible PWFA accommodations may include:

• Bathroom, meal, water, and rest breaks;
• Modifications to unform/dress code requirements;
• Modifying food or drink policies while on duty;
• Providing a stool or seat;
• Flexibility in work schedules, including reduced hours or a later start time.

Additional bathroom, food, and drink breaks will almost always be considered a reasonable accommodation. Similarly, permitting employees to sit or stand and allow drinks to be kept near the employee will also be deemed reasonable accommodations.

Employers Cannot Seek Documentation for Certain Requests

Employers are prohibited from seeking documentation from the employee to support the accommodation request if the employee’s restrictions or need for an accommodation are obvious. Likewise, if the employer already has enough documentation regarding the limitation, the employer is also prohibited from requesting additional documentation from the employee. The PWFA also prohibits employers from requesting documentation in support of an employee’s request to pump breast milk at work. Significantly, an employer can never ask an employee with a limitation due to pregnancy, childbirth or related conditions for documentation on their accommodation request when other employees, suffering from different conditions, enjoy similar accommodations without providing documentation.

Unpaid Leave

The final rule makes clear that employers must tread extremely lightly when requiring an employee to take leave under the PWA, especially if other accommodations exist.

Applicants

Employers violate the PWFA if they refuse to hire a pregnant applicant because the employee will require leave in the near future. Training all hiring managers and human resources on this critical feature of the PWFA is vital. Training should also be provided to all involved in the hiring process and human resources on pregnant applicants and how to comply with the PWFA during interviewing and hiring.

Conclusion

The final rule on the PWFA is 408 pages long. It is an intricate and complicated rule. Genova Burns provides instruction on this law, updates employer handbooks to comply with the PWFA, and trains human resources and hiring personnel on the do’s and don’ts of the PWFA. For further information, contact Brigette N. Eagan, Esq., Partner and Chair of the Human Resources and Compliance Group via email here  or (973) 535-7114.